Is the Constituency Development Fund (CDF) in existence or not? Well, that is the fundamental question as members of the National Assembly commence the term of the 13th Parliament.

While lawmakers insist that what the Supreme Court declared unconstitutional was the CDF Act 2013 and not its successor – the National Government Constituency Development Fund (NG-CDF) Act 2015 – Katiba Institute that contested the fund maintain MPs must not be involved in direct management of any public resources but stick to three functions assigned to them by the Constitution; representation, legislation and oversight.

On the eve of the August 9th General Election, the Supreme Court rendered a verdict, declaring the CDF Act 2013 unconstitutional.

That judgment by the country’s top judges left Parliamentary candidates in a spin, with the fund’s grassroots success stories and political influence well documented.

“It sounded like a bombshell. Mine is to assure members that all is not lost, CDF largely has done wonders in the country,” says former National Assembly Speaker Justin Muturi.

With the 13th Parliament formally kicking off on Thursday with the swearing-in of MPs and election of Moses Wetangula as Speaker and Gladys Boss as his deputy, whether the CDF exists or not is a fundamental question.

This even as Katiba Institute that successfully contested the constitutionality of CDF Act 2013 termed the fund a closed chapter.

Katiba Institute lawyer Lempaa Suyianka says: “No legislative craft can revive any social fund; be it NGAAF or NGCDF. The Supreme Court said, in no uncertain terms, that such functions as were carried out by the fund can be taken by county government through cooperative governance which is under the Constitution.”

In its judgment, the Supreme Court cited seven key reasons for declaring the CDF Act 2013 unconstitutional.

Top among them was, violation of the principle of separation of power between the three arms of government; Executive, Judiciary and Parliament.

The apex court judges also declared that the fund operated outside the established structure of sharing revenue between the national government and 47 county governments.

Members of the 13th Parliament, in defence of the fund, insist the constitutional gaps had been plugged by the National Government Constituency Development Fund Act 2015.

Kipkelion West MP Hillary Kosgey opines: “The CDF we have been using and operating under was aligned in 2015, and that is why the name CDF was changed to NG-CDF. We will go back to court and tell them you ruled on a different law.”

His Manyatta counterpart Gitonga Mukunji said: “We need to actually increase it…we need to improve on it so that we can have it serving the society better than it has been doing.”

Other than a case challenging the constitutionality of the CDF Act 2013, Katiba Institute had filed a petition at the High Court, contesting the NG-CDF Act 2015, claiming Parliament was mischievous; that case awaits determination.

“Wakati tuliwashinda in 2015, ambapo mahakama kuu ilisema CDF Act is unconstitutional, walienda wakaongeza tu ‘NG’ kwa ‘CDF’…zile taasisi zote ziko kwa ile sheria ya zamani ndizo ziko kwenye NGCDF,” adds lawyer Lempaa.

Each of the 290 constituencies receive a minimum of Ksh.140 million every financial year to finance development projects, but specifically for functions assigned to the national government, such as construction of primary and secondary schools, police stations, national government administration office blocks and award of bursaries.

MPs in the 13th Parliament insist that doing away with NG-CDF will deny their constituents key development opportunities.

“Since they’re the lawmakers, they make and unmake laws, they should be able to navigate those areas of separation of powers and this question of how to deal with the aspect of shareable revenue, it is not so much in limbo,” Muturi adds.

Lempaa, on his part, states: “NGCDF is dead and buried, MPs to prepare and start trembling…go and perform your duties under Article 95 of the Constitution. These other things ni kinyume na sheria.”

All eyes now are on the High Court as it determines the fate of NG-CDF Act 2015 and whether the Supreme Court judgment declaring CDF Act 2013 unconstitutional would influence the judges’ verdict.